POST-GARDNER-DENVER DEVELOPMENTS 59

POST-GARDNER-DENVER DEVELOPMENTS 59

available as an integral part of their workplace the facilities forthe prompt processing of all discrimination grievances to arbitra-tion.

The courts have approved the NLRB's deferral policies,57 andthere is every reason to assume the courts will approve a similardeferral policy if adopted by the EEOC. Indeed, the SupremeCourt's decision in Gardner-Denver, by suggesting the factors thatwill entitle an award to acceptance by the courts, affords the logi-cal basis for deferral—for why should the EEOC spend its timeand money if an acceptable award seems likely?

Conclusion

Robert Coulson, president of the American Arbitration Asso-ciation, in his preface to the casebook, Arbitration of Discrimina-tion Grievances, posed the alternatives as follows: "Labor arbitra-tion can either be converted to a problem-solving tribunal bythis explosive and potentially expensive conflict area, or it maywither away because individual complainants lack faith in itseffectiveness." 58

Converting labor arbitration into an effective and acceptableproblem-solving tribunal in the revolution of race and sex nowrising in American industry may be an impossible task. But thedangers of failing are ominous for the world of free labor. Thechallenge requires that arbitrators seek the approval of only thoseemployers and unions who are willing to place the costs ofachieving genuine equal opportunity for all ahead of immediate,selfish political and economic goals.

A R B I T R A T I O N OF EMPLOYMENTDISCRIMINATION CASES: AN EMPIRICAL STUDY

HARRY T. EDWARDS *

Probably the least surprising and best publicized employmentdiscrimination case decided in 1974 was the Supreme Court rul-ing in Alexander v. Gardner-Denver Co.1 The opinion finally re-

ST Enterprise Publishing Co. v. NLRB, 493 F.2d 1024, 82 LRRM 1337 (1st Cir.1973) ; Nabisco v. NLRB, 479 F.2d 770, 83 LRRM 2612 (2d Cir. 1973).

58 Stone and Baderschneider, supra note 21, at 5.* Member, National Academy of Arbitrators; Professor of Law, University of

Michigan Law School, Ann Arbor, Mich. Copyright © Harry T. Edwards,i 415 U.S. 36, 7 FEP Cases 81 (1974) .

60 ARBITRATION—1975

solved the long-raging debate concerning the effect of a prior ar-bitration decision on employment discrimination claims arisingunder Title VII.2 Gardner-Denver is particularly noteworthy be-cause the Supreme Court unhesitatingly rejected the contentionthat private arbitration may be used as a bar to individual em-ployment discrimination claims brought pursuant to Title VII.

The facts in Gardner-Denver were relatively simple. A blackemployee was discharged by his employer for allegedly producingtoo much scrap. Following his dismissal, the employee filed agrievance under a collective bargaining agreement that had beenexecuted by his employer and his union representative. Althoughthe contract expressly prohibited employment discrimination"against any employee on account of race, color, religion, sex, na-tional origin, or ancestry," no explicit charge of racial discrimina-tion was made at the time when the employee initiated his griev-ance complaint. The grievance was processed under theapplicable grievance procedure in the collective bargaining agree-ment, and the matter was eventually appealed to arbitration. Atthe final step in the grievance procedure, just prior to arbitration,the employee alleged, for the first time, that he had been dis-charged because of his race.

The contractual arbitration clause covered "differences arisingbetween the Company and the Union as to the meaning and ap-plication of the provisions of [the] Agreement" and "any troublearising in the plant." The agreement also provided for selectionof an impartial arbitrator; it stated that "the decision of the arbi-trator shall be final and binding upon the Company, the Union,and any employee or employees involved"; and it indicated that"the arbitrator shall not amend, take away, add to, or change anyof the provisions of this Agreement, and the arbitrator's decisionmust be based solely upon an interpretation of the provisions ofthis Agreement."

During the time when the employee's grievance was beingprocessed under the contractual grievance procedure but beforethe matter had been appealed to arbitration, the employee filed acharge of racial discrimination with the Colorado Civil RightsCommission. This charge was subsequently processed by theEqual Employment Opportunity Commission under Title VII.

2 42 U.S.C. §2000e et seq.


Thereafter, an arbitration hearing was held to consider thematter of the employee's contractual grievance dispute. At the ar-bitration hearing the employee testified that his discharge was theresult of racial discrimination, and he stated that he "could notrely on the union." The union introduced a letter in which theemployee had stated that he was "knowledgeable that in the sameplant others have scrapped an equal amount and sometimes in ex-cess, but by all logical reasoning I . . . have been the target ofpreferential discriminatory treatment." The union representativealso testified that the company's usual practice was to transfer un-satisfactory trainee drill operators back to their former positions.After considering this evidence, the arbitrator ruled that theblack employee had been "discharged for just cause" under thecollective bargaining agreement. He made no reference to theemployee's claim of racial discrimination. The arbitrator alsostated that the union had failed to produce any satisfactory evi-dence of any practice that required the company to transfer,rather than discharge, trainees who accumulated excessive scrap.

Seven months following the issuance of the arbitration award,the Equal Employment Opportunity Commission determinedthat there was no reasonable cause to believe that Title VII hadbeen violated. The employee nevertheless brought an action inthe U.S. District Court alleging that his discharge resulted fromrace discrimination. The district court granted the employer'smotion for summary judgment and dismissed the case.3 In reach-ing this decision, the district court relied on the fact that the em-ployee's charge of race discrimination had been raised and re-solved in arbitration and, therefore, since the employee hadvoluntarily elected to pursue his claim under the grievance-arbi-tration provision, he was thereby precluded from suing his em-ployer under Title VII. The Court of Appeals for the Tenth Cir-cuit affirmed per curiam and adopted the rationale stated in thedistrict court opinion.4

Prior to the Tenth Circuit decision in Gardner-Denver, theSixth Circuit, in Dewey v. Reynolds Metals Co.,5 had ruled thatonce an employee has pursued a claim of discrimination in arbi-tration, he has made a final and binding election of remedies andmay not subsequently relitigate the same claim in court under

s 346 F.Supp. 1012 (1971) .4 466 F.2d 1209, 4 FEP Cases 1210 (1972) .s 429 F.2d 324, 2 FEP Cases 687 (1970) .


Title VII. The decision in Dewey was affirmed without opinionby an equally divided Supreme Court.6 However, other courts ofappeals, in the Fifth,7 Seventh,8 and Ninth ° Circuits, had re-jected the view stated in Dewey and had ruled that an arbitrationaward in a matter involving a claim of employment discrimina-tion did not operate as a bar to a Title VII suit. Shortly after thedecision in Dewey, the Sixth Circuit, in Newman v. AvcoCorp./0 appeared to retreat from its initial position and sug-gested that there could be no preclusion of a federal remedyunder Title VII when both arbitration and court or agency proc-esses were pursued simultaneously. Thus, after the issuance of theTenth Circuit opinion in Gardner-Denver, the Supreme Courthad an ideal opportunity to resolve the conflict between the var-ious circuits and to enunciate the applicable policies in cases ofthis type.

In reversing the two lower courts, and ruling against the em-ployer's position, the Supreme Court in Gardner-Denver made itclear that the doctrine of "election of remedies" was inapplicablein cases where an employee pursues a Title VII remedy followingan adverse opinion in arbitration. Rather, the Court observedthat Title VII involved statutory rights that were distinctly sepa-rate from employees' contractual rights, even when the violationof both may have resulted from the same factual occurrence. Inshort, the Court made it clear that an employee is not foreclosedfrom pursuing a cause of action under Title VII by processing agrievance under a contract. This is so because the arbitrator's au-thority is confined to the resolution of questions of contractualrights, regardless of whether these rights resemble or duplicateTitle VII rights.

The Supreme Court also plainly rejected the reasoning of theSixth Circuit in Dexuey v. Reynolds Metals Co. The Sixth Circuitin Dewey had relied on the doctrine of election of remedies. Inits later decision, in Newman v. Avco Corp., the Sixth Circuithad described Dewey as resting on the doctrine of equitable es-toppel and on "themes of res judicata and collateral estoppel."

6 402 U.S. 689, 3 FEP Cases 508 (1971) .7 Hutchings v. United States Industries Inc., 428 F.2d 303, 2 FEP Cases 725 (5th

Cir. 1970) .* Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 2 FEP Cases 121 (7th Cir. 1969) .9 Oubichon v. North American Rockwell Corp., 482 F.2d 569, 6 FEP Cases 171

(9th Cir. 1973) .io 451 F.2d 743 (6th Cir. 1971) .


The Supreme Court in Gardner-Denver observed, however, that"the policy reasons for rejecting the doctrines of election of reme-dies and waiver in the context of Title VII are equally applicableto the doctrines of res judicata and collateral estoppel." TheCourt opinion stated further that Title VII vests the federalcourts with "plenary powers to enforce statutory requirements"and that the law indicates "no suggestion . . . that a prior arbitraldecision either forecloses an individual right to sue or divests fed-eral courts of jurisdiction." Finally, the Court noted that "legisla-tive enactments in this area have long evinced a general intent toaccord parallel or overlapping remedies against discrimination"and that "submission of a claim to one forum does not preclude alater submission to another."

The Court also considered the employer's claim that the em-ployee in Gardner-Denver had "waived" his right to bring aTitle VII action. On this point, the Court declared that "therecan be no prospective waiver of an employee's rights under TitleVII." The Court recognized that certain statutory rights may oc-casionally be waived by a union bargaining agent, pursuant tothe principle of exclusive representation; however, the Courtmade it clear that Title VII establishes rights to equal employ-ment opportunity which "can form no part of the collective bar-gaining process since waiver of these rights would defeat the para-mount Congressional purpose" underlying Title VII. TheCourt's opinion accepts the possibility that an employee mayunder certain circumstances voluntarily and knowingly agree tosettle a claim of employment discrimination and thereby waivehis right to pursue a Title VII action in federal court. However,the opinion makes it equally clear that: "In no event can the sub-mission to arbitration of a claim under the nondiscriminationclause of a collective-bargaining agreement constitute a bindingwaiver with respect to an employee's rights under Title VII."

The decision in Gardner-Denver plainly does not forbid the ar-bitration of employment discrimination claims. However, the Su-preme Court did reject the "deferral standard" which had beenadopted by the Fifth Circuit in Rios v. Reynolds Metals Co.11

On this point, the Court noted that:

"We think . . . that the federal policy favoring arbitration of labordisputes and the federal policy against discriminatory employment

467 F.2d 54, 5 FEP Cases 1 (5th Cir. 1972) .


practices can be best accommodated by permitting an employee topursue fully both his remedy under the grievance-arbitration clauseof a collective bargaining agreement and his cause of action underTitle VII. The federal court should consider the employee's claimtie nova. The arbitral decision may be admitted as evidence andaccorded such weight as the court deems appropriate."

In dealing with this issue, the Court was persuaded by two im-portant considerations. First, the Court dealt with the districtcourt's assertion that it could not "accept a philosophy whichgives the employee two strings to his bow when the employer hasonly one." On this point, the Court noted that:

"This argument mistakes the effect of Title VII. . . . In institutingan action under Title VII, the employee is not seeking review ofthe arbitrator's decision. Rather he is asserting a statutory rightindependent of the arbitration process. An employer does not have'two strings to his bow' with respect to an arbitral decision for thesimple reason that Title VII does not provide employers with acause of action against employees. An employer cannot be the victimof discriminatory employment practices."

Second, the Court concluded that certain facts "render arbitralprocesses comparatively inferior to judicial processes in the pro-tection of Title VII rights." On this score, the Court made thefollowing significant observations:

"Parties usually choose an arbitrator because they trust his knowl-edge and judgment concerning the demands and norms of industrialrelations. On the other hand, the resolution of statutory or consti-tutional issues is a primary responsibility of courts, and judicialconstruction has proven especially necessary with respect to TitleVII, whose broad language frequently can be given meaning onlywith reference to public law concepts.

"Moreover, the fact-finding process in arbitration usually is notequivalent to judicial fact-finding. The record of the arbitrationproceedings is not as complete; the usual rules of evidence do notapply; and rights and procedures common to civil trials, such asdiscovery, compulsory process, cross-examination, and testimonyunder oath, are often severely limited or unavailable."

Does the Decision in Gardner-Denver RaiseAny Significant Problems for the Future?

The Supreme Court opinion in Alexander v. Gardner-Denver isa sound, well-reasoned resolution of the issues posed. However, theCourt's handling of the deferral question leaves some room fordoubt and, therefore, the issue may cause some serious problems


for Title VII litigants in the future. The Court initially declinedto adopt any specific standards as to the weight, if any, to be ac-corded arbitration decisions in cases involving claims of employ-ment discrimination. But at the end of the opinion the Court ap-peared to hedge on the question, in Footnote 21, with thefollowing observation:

"We adopt no standards as to the weight to be accorded an arbitraldecision, since this must be determined in the court's discretion withregard to the facts and circumstances of each case. Relevant factorsinclude the existence of provisions in the collective bargainingagreement that conform substantially with Title VII, the degreeof procedural fairness in the arbitral forum, adequacy of the recordwith respect to the issue of discrimination, and the special compe-tence of particular arbitrators. Where an arbitral determinationgives full consideration to an employee's Title VII rights, a courtmay properly accord it great weight. This is especially true wherethe issue is solely one of fact, specifically addressed by the partiesand decided by the arbitrator on the basis of an adequate record."

This passing comment by the Court may raise some seriousproblems in the future. If federal district judges view this Su-preme Court statement as a general license to defer to arbitrationdecisions, then the primary principle of Gardner-Denver could beseverely diluted upon implementation. Even worse, the Court inGardner-Denver suggested that the lower courts should consider"the special competence of particular arbitrators" in decidingwhether to accord an arbitration decision "great weight." It cer-tainly is not clear how the Court would propose that "specialcompetence" should be judged.

The Supreme Court's limited statement in Footnote 21 inGardner-Denver (concerning the weight to be accorded an arbi-tral decision) probably should not, without more, be read to be asignificant defection from the more basic and overriding princi-ples that are set out in the body of the opinion. However, severaljudicial decisions rendered since Gardner-Denver have mademore likely the possibility that federal district courts will, withsome frequency, and before too long, begin to "defer" to arbitra-tors' opinions in Title VII cases.

One such case is the recent Sixth Circuit decision in EEOC v.Detroit Edison Co.12 The district court in Detroit Edison 13 had

12 10 FEP Cases 239 (6th Cir. 1975) .13 365 F.Supp. 87 (1973).


found that one of the union defendants violated Title VII by dis-couraging black employees from filing grievances under a collec-tive bargaining grievance-arbitration procedure. In adopting thisfinding of discrimination, the Sixth Circuit rejected the union'sargument that it should not be held responsible for any of thecompany's acts of discrimination because the union was not re-sponsible for hiring, rejecting, testing, or promoting employees.Rather, the court noted that:

"It has long been settled that a union must attempt to protect itsminority members from discriminatory acts of an employer. Thisobligation requires a union to assert the rights of its minority mem-bers in collective bargaining sessions, and not passively accept prac-tices which discriminate against them."

This decision, which relies on principles gleaned from Title VII,when coupled with the decisions that hold that a union may befound guilty of a breach of the duty of fair representation underthe National Labor Relations Act if it fails to prosecute employ-ees' legitimate claims of employment discrimination under a con-tractual grievance procedure, will probably cause union repre-sentatives to think twice before declining to process anemployee's charge of discrimination in arbitration.

Another such case is the recent Supreme Court opinion inEmporium Capwell Co. v. Western Addition CommunityOrganization.^' In Emporium, the Court ruled that, althoughnational labor policy accords the highest priority to nondiscrimi-natory employment practices, the National Labor Relations Actdoes not protect concerted activity by minority employees whoseek to bypass their union representative and bargain directlywith their employer over issues of employment discrimination. Inreaching this result, the Court gave strong support to the princi-ples of majority rule and exclusive representation; the Court alsoexpressed great concern about minority action that might effec-tively erode the strength of the union bargaining agent:

"The court below minimized the impact on the union in this caseby noting that it was not working at cross-purposes with the dissi-dents [in opposing discrimination] and that indeed it could not doso consistent with its duty of fair representation and perhaps itsobligations under Title VII. . . . This argument confuses the em-ployees' substantive right to be free of racial discrimination withthe procedures available under the NLRA for securing these rights.

14 43 L.W. 4214, 9 FEP Cases 195 (1975) .


Whether they are thought to depend upon Title VII or have anindependent source in the NLRA, they cannot be pursued at theexpense of orderly collective-bargaining processes contemplated bythe NLRA. The elimination of discrimination and its vestiges is anappropriate subject of bargaining, and an employer may have noobjection to incorporating into a collective agreement the substanceof his obligation not to discriminate in personnel decisions; theCompany here has done as much, making any claimed derelictiona matter subject to the grievance-arbitration machinery as well asto the processes of Title VII."

The Emporium decision is important because it may severelylimit the rights of minority employees to take direct actionagainst an employer who is perceived to be guilty of employmentdiscrimination under Title VII. The Court in Emporium ruledin effect that even if the relief available under Title VII is inade-quate because the legal procedures are too cumbersome or time-consuming, this fact will not justify dissident employee actiontaken against an employer to protest against alleged race discrimi-nation. The Court thus concluded that employee interests (atleast under the NLRA) may be adequately protected when aunion is serving as the employees' exclusive bargaining agent andwhere a collective bargaining agreement adequately provides fornondiscrimination and makes available a grievance-arbitrationprocedure to redress employee complaints. Although a host of is-sues remains unresolved in the wake of Emporium, it is probablystill fair to assume that one possible consequence of the opinionwill be to encourage employers, unions, and employees to processemployment discrimination claims under existing contractualgrievance-arbitration procedures.

Another judicial opinion that will raise some difficulties in thisarea is the recent Supreme Court decision in Arnett v.Kennedy.^0 In 1972, the Supreme Court, in Board of Regents v.Roth 16 and Perry v. Sindermann,11 ruled that a public em-ployee is entitled to "procedural due process" before being de-nied employment rights if the employee has a "property interest"in continued employment. Two years later, in Arnett v. Kennedy,a majority of the Supreme Court decided that a public employeewho was protected against dismissals except "for cause," pursuantto a substantive right given by statute, had a legitimate claim of

is 94 S.Ct. 1633 (1974) .16 408 U.S. 564 (1972) .17 408 U.S. 593 (1972) .


entitlement to a "property interest" under the Fifth or Four-teenth Amendments of the Constitution and, therefore, the em-ployee's job could not be terminated without notice and full evi-dentiary hearing. Even though Arnett involved a grant of "forcause" protection under a statute, there is no reason to believethat the same ruling will not apply in cases involving public em-ployees who are protected against dismissals except "for cause"under a collective bargaining agreement.

A majority of the Court in Arnett also ruled that a "propertyinterest" may not be conditioned by procedural limitations whichaccompany the grant of the property interest. If this is so, then itmay be legitimately argued that public employees covered bycollective bargaining agreements that prohibit employers fromdismissing them without cause will always be entitled to a hear-ing before an impartial tribunal before dismissal. It is not at allclear from the decision in Arnett whether it is necessary to con-duct an arbitration hearing (or something like it) in order to sat-isfy the constitutional requirement of "procedural due process"when an employee has allegedly been discharged without cause;however, the opinions of several of the Justices in Arnett wouldcertainly militate in favor of such a conclusion.

If Arnett can be read in this manner, then one possible resultof the decision may be that unions will not have the option to re-fuse to go to arbitration in cases (1) involving public employees,(2) where the employee has allegedly been discharged withoutcause (including for discriminatory reasons) , and (3) wherethere is a collective bargaining agreement in force that protectsagainst such dismissals and makes arbitration available to handlesuch employee complaints. Such a ruling would, of course, seri-ously erode the long-recognized right of unions to decide when toappeal employee grievances to binding arbitration.18

It may be, however, that on a second look, the Supreme Courtmay decide against extending Arnett this far or it may decline toread the constitutional requirement of procedural due process sobroadly.11' This certainly would not be surprising, especially incases involving claims of employment discrimination where theaggrieved employee has an alternative judicial forum which will

is See Vaca v. Sipes, 386 U.S. 171 (1967) .is Cf., Withrow v. Larkin, 43 L.W. 4459 (U.S. Sup. Ct., April 15, 1975) .


always afford procedural due process in resolving claims arisingunder Title VII, Section 1981 of the Civil Rights Act of 1866, orSection 1983 of the Civil Rights Act of 1871.

Whether or not Roth, Sindermann, and Arnett are ultimatelylimited so as to foreclose some of the possibilities here suggested,there is enough in these decisions to encourage employers, un-ions, and employees in the public sector to process employmentdiscrimination claims under existing grievance-arbitration proce-dures.

The Nagging Issue of Deferral

Although the opinion in Gardner-Denver appears to make itplain that there is no legal requirement that employment dis-crimination claims must be processed under contract grievance-ar-bitration procedures, the continued likelihood of such occurringis greatly enhanced by the several opinions discussed above. Itmust also be recognized that it is very likely that employment dis-crimination cases will always be processed under grievance-arbi-tration procedures, unless expressly excluded, because arbitrationis often the most convenient, inexpensive, and expeditious forumin which an aggrieved employee may pursue a charge of discrimi-nation. The Supreme Court recognized this in Gardner-Denverwhen it pointed out the potential therapeutic effects of arbitra-tion, as follows:

"The grievance-arbitration machinery of the collective-bargainingagreement remains a relatively inexpensive and expeditious meansfor resolving a wide range of disputes, including claims of discrimi-natory employment practices. Where the collective-bargaining agree-ment contains a nondiscrimination clause similar to Title VII andwhere arbitral procedures are fair and regular, arbitration may wellproduce a settlement satisfactory to both employer and employee.An employer thus has an incentive to make available the conciliatoryand therapeutic processes of arbitration which may satisfy an em-ployee's perceived need to resort to the judicial forum, thus savingthe employer the expense and aggravation associated with a law suit.For similar reasons, the employee also has a strong incentive toarbitrate grievances, and arbitration may often eliminate those mis-understandings or discriminatory practices that might otherwiseprecipitate resort to the judicial forum."

In this same vein, it must also be recognized that employment"discrimination cases frequently involve employee dismissals thatare claimed to be without "just cause" and alleged violations of


contractual seniority provisions. Since "just cause" and senioritymatters are routinely heard in arbitration, it is very likely thatemployment discrimination cases that touch these areas will fre-quently be heard in arbitration.

These facts, taken together, suggest that, unless employers andunions begin to adopt arbitration clauses that expressly excludeemployment discrimination cases from arbitration,20 it is likelythat these cases will continue to be heard in arbitration in greatnumbers. If this is so, then it is not unreasonable to assume thatthe federal courts, which are already overburdened with heavycaseloads, will in time develop de facto schemes of deferral in orderto give "great weight" to arbitration decisions pursuant to thesuggestion made by the Supreme Court in Footnote 21 in theGardner-Denver opinion. Although this may not prove to be a se-rious problem, it would appear that there are some reasons to beconcerned about such a development.

Any rule of deferral must, by definition, be founded on the as-sumptions that the arbitration process is adequate to deal with"legal" issues arising under Title VII and that arbitrators areboth competent and willing to decide such "legal" issues. How-ever, the evidence is at best unclear on these points and, there-fore, the assumptions should not be taken to be valid merely be-cause they are asserted.

The Survey of Arbitrators

Since Gardner-Denver leaves open the issue as to how muchweight, if any, should be accorded an arbitral decision, it is im-portant to get more empirical evidence about the capacity of thearbitration process and arbitrators to deal with legal issues aris-ing under Title VII. In an effort to do just this, this writer con-ducted a survey of all of the U.S. members of the National Acad-emy of Arbitrators in February 1975. The survey questionnairewas sent to 409 persons; 200 arbitrators responded to the ques-tionnaire. (See Appendixes A and B attached hereto.) The aver-age age of the responding arbitrators was 49 years, and the rangeof ages was from 31 to 77 years. The average years of arbitrationexperience among the respondents was 21 years (with the rangebeing from 4 to 40 years) .

20 Sec Board of Higher Education of City of New York v. Professional StaffCongress/CUNY, 362 N.Y.S.2d 985, 89 LRRM'2320 (N.Y. Sup. Ct. 1975).


The percentage of survey questionnaires returned from eachregion in the United States was approximately the same. (Thelowest percentage was in the southeast region where 40 percent ofthe arbitrators returned their survey questionnaire; the highestpercentage of returns came from the State of Michigan wherenearly 63 percent of the arbitrators answered the survey question-naire.)

The Capacity of Arbitrators to Decide "Legal" Issues in Cases In-volving Claims of Employment Discrimination

One of the things that the survey attempted to determine wasthe extent to which arbitrators are competent to handle "legal"issues in employment discrimination cases. The findings on thisscore were most interesting.

One of the questions asked of the respondents was whetherthey had ever read any judicial opinions involving a claim of dis-crimination under Title VII. One respondent appeared to thinkthat the question was incredulous, and he or she asked, "Whatkind of arbitrator does not" read judicial opinions? The surveyresults do not indicate what kind of an arbitrator does not readjudicial opinions; however, it does indicate that 77 percent of therespondents had read judicial opinions involving claims of dis-crimination under Title VII at one time or another, 16 percentof the respondents indicated that they had never read any suchjudicial opinions, and 7 percent of the respondents declined toanswer the question.

The arbitrators were also asked whether they regularly readlabor advance sheets to keep abreast of current developmentsunder Title VII. On this question, only 52 percent of the re-spondents indicated that they did read labor advance sheets,nearly 40 percent of the respondents answered that they did not,and 8 percent of the respondents declined to answer the question.

Another question asked the arbitrators was whether theycould define "bona fide occupational qualification," "reasonableaccommodation/undue hardship," and "preferential treatment"and accurately explain the current status of the law under TitleVII with respect to each of these legal terms. It is significant thatvery few of the respondents felt that they could define these termswithout first doing some legal research. Only 14 percent of the re-


spondents indicated that they felt confident that they could accu-rately define each of the terms and explain the relevant law, 30percent of the respondents stated that they could make a good"educated guess" but would not certify their answers as being ac-curate, and nearly 50 percent of the respondents indicated thatthey would prefer to research the question before answering.

Finally, the arbitrators were asked whether they felt that theywere professionally competent to decide "legal" issues in cases in-volving claims of race, sex, national origin, or religious discrimi-nation. It is extremely noteworthy that, in answer to this ques-tion, only about 72 percent of the respondents indicated that theyfelt professionally competent to decide legal issues in casesinvolving claims of employment discrimination. Sixteen percentof the respondents answered that they did not feel professionallycompetent to handle such cases, and 12 percent of the respond-ents declined to answer the question.

While these statistics raise some troublesome questions aboutthe capacity of arbitrators to decide legal issues in cases involvingclaims of employment discrimination, they surely do not, withoutmore, prove that arbitrators are incapable of handling such legalmatters. There are some additional data from the survey, how-ever, that raise more serious questions with respect to the capac-ity of arbitrators to decide legal issues in cases involving claims ofemployment discrimination.

Most of the respondents (83 percent) who indicated that theyhad never read a judicial opinion involving a claim of employ-ment discrimination also indicated that they did not regularlyread labor advance sheets to keep abreast of current develop-ments under Title VII. Yet, 50 percent of this group of respond-ents nevertheless answered that they felt professionally competentto decide "legal" issues in cases involving claims of race, sex, na-tional origin, or religious discrimination. Similarly, 70 percent ofthe group of respondents who indicated that they did not regu-larly read labor advance sheets to keep abreast of current devel-opments under Title VII nevertheless indicated that they feltprofessionally competent to decide legal questions in cases involv-ing claims of employment discrimination. From these facts, it isobvious that many arbitrators do not believe that these factors arerelevant measures of the professional competence of arbitrators to


decide legal issues in cases involving claims of employment dis-crimination.

However, it is interesting to note that 83 percent of the groupof respondents who had never read a judicial opinion indicatedthat they could not define the three legal terms mentioned on thequestionnaire without first doing some legal research. Only 13percent of this group felt that they could make a good "educatedguess" about the definition of the three legal terms, and only 3percent of the group felt that they could do more than give aneducated guess.

On this same score, 63 percent of the group of respondents whoanswered that they did not regularly read labor advance sheetsalso answered that they could not define the three legal termswithout doing some research on the subject. Only 5 percent ofthis group indicated that they could do more than give an edu-cated guess about the meaning of the legal terms in question.

Only 14 percent of the total group of respondents indicatedthat they felt that they were both (1) professionally competent todecide legal issues in cases involving claims of employment dis-crimination, and (2) able to define "bona fide occupational qual-ification," "reasonable accommodation/undue hardship," and"preferential treatment" without doing any research, and accu-rately explain the current status of the law with respect to each ofthese concepts. Of equal significance is the fact that only 18 per-cent of the group of respondents who felt that they were profes-sionally competent to decide legal issues in employmentdiscrimination cases stated that they could define the three legalterms with something more than a good "educated guess" andwithout doing any research on the subject. Finally, it is surpris-ing to note that nearly 20 percent of the respondents who indi-cated that they could accurately define each of the three legalterms or make a good "educated guess" on the subject neverthe-less indicated that they did not feel professionally competent todecide "legal" issues in cases involving claims of employment dis-crimination.

The question of professional competence would be of little in-terest if only qualified persons were being selected to hear anddecide arbitration cases involving legal issues in connection withclaims of employment discrimination. However, the survey data


indicate that one half of the respondents who answered that theydid not I eel professionally competent to decide legal issues incases involving claims of employment discrimination also an-swered that they had heard and decided such cases during thepast year. Thus, there is no reason to believe that the arbitra-tion-selection processes, as they presently exist, are designed toscreen out persons who are not professionally qualified to decidelegal issues in cases involving claims of employment discrimina-tion.

It is obvious from the above data that many arbitrators feelthat they are competent to handle employment discriminationcases (and to decide related legal issues) even though they arenot otherwise knowledgeable about current developments in thelaw under Title VII. This is shown by the fact that there is nostrong statistical relationship between arbitrators' ability to definethree oft-cited legal terms (pertaining to the law under TitleVII) and arbitrators' personal perceptions about their profes-sional competence to decide "legal" issues in cases involvingclaims of employment discrimination. In fairness, however, itmust be conceded that a great many of the persons who are mem-bers of the National Academy of Arbitrators clearly possess theintellectual wherewithall, general expertise in the field of laborand industrial relations, and sufficient "judicial" experience tomake them potentially well qualified and highly able to decidemost employment discrimination cases (and most "legal" issuesassociated with such cases) . Indeed, many arbitrators are wellable to research a "legal" issue, discover the relevant law, andissue a sound decision on the matter. However, it must be recog-nized that the judgment as to "qualifications" may be viewed asan abstract possibility or as a current reality. The data from thesurvey would suggest that many arbitrators are potentially, butnot actually, well qualified to decide legal issues in cases involv-ing claims of employment discrimination at the present time.

The Capacity of the Arbitration Process to Handle EmploymentDiscrimination Cases Involving Legal Issues Cognizable UnderTitle VII

The problem here is compounded by some additional consider-ations having to do with the nature of the arbitration process andwith the arbitrators' perceptions about their roles in cases involv-


ing legal issues. Even if it may be assumed, arguendo, that manyarbitrators are professionally competent to decide legal issues incases involving claims of employment discrimination, the natureof the arbitration process will often make it impossible, or at bestdifficult, for such arbitrators to render opinions that effectively re-solve legal issues in cases involving claims of employment discrim-ination. The following facts, based on the evidence from the sur-vey, appear to support this conclusion.

In many cases, lawyers do not appear as advocates for theparties in arbitration proceedings involving claims of employ-ment discrimination. This is not to say that only lawyers arequalified to serve as advocates in arbitration proceedings; quitethe contrary, because it is clear that there are many outstandingarbitration advocates on both sides of the table who have neverhad any legal training. However, it must be assumed that lawyers,because of their professional training, should be better able thannonlawyers to identify and argue about "legal" issues that mightbe relevant in employment discrimination cases.

The survey results indicate that lawyers represented both theunion and the company in only 173 out of 328 employment dis-crimination cases heard during the period from February 1974until February 1975 (i.e., 53 percent of all of the cases) . Compa-nies were represented by legal counsel in 76 percent of the cases;unions were represented by legal counsel in only 53 percent ofthe cases. On the basis of these data, and if it can be assumed thatlegal representation may be an advantage in an arbitration caseinvolving claims of employment discrimination, then it may beconcluded that employee-grievants are at least somewhat disad-vantaged in approximately 25 percent of these cases where thecompany has legal representation and the union does not.

One way to overcome this problem might be to allow grievantsto appear with their own legal counsel in arbitration cases involv-ing claims of employment discrimination. However, the surveyresults indicate that this approach was followed in only 9 percent(30 out of 328) of the cases involving claims of employment dis-

crimination heard in arbitration.

It also might be argued that, since employee-grievants are notforeclosed by arbitration from pursuing their legal remediesunder Title VII, it should not matter whether they are given


legal representation in arbitration. However, the survey resultssuggest that many of the employment discrimination cases thatare decided in arbitration do not subsequently get reheard by theEEOC or by the courts. The evidence received from the arbitra-tors who responded to the survey reveals that employment dis-crimination charges had been filed with the EEOC or the courtsin only 25 percent (84 out of 328) of all of the employment dis-crimination cases that were heard in arbitration. This figure maybe deceptively low, either because some of the arbitrator respond-ents were unaware of all of the cases in which grievants filedcharges under Title VII or because such charges were filed subse-quent to the conclusion of the arbitration proceeding. However,it is nevertheless noteworthy that the number of duplicatecharges (involving complaints of employment discriminationwhich are heard in arbitration and in the courts) does not appearto be nearly as high as some persons have suggested. If these fig-ures are accurate, then they certainly negate the argument ad-vanced by those who oppose the decision in Gardner-Denver onthe ground that an employee should not get "two bites at thesame apple."

Several other important problems were raised in connectionwith the capacity of the arbitration process to deal with legal is-sues in employment discrimination cases. One such problem hasto do with the nature of the substantive issue that is actually de-cided by an arbitrator in a case involving a claim of employmentdiscrimination. On this score, it must be recognized that an arbi-trator cannot resolve a legal issue, or give due consideration tothe relevant law, if the matter is not raised as an issue in arbitra-tion. On this point, the survey results indicate that the relevanceof Title VII was raised in only 31 percent (103) of the employ-ment discrimination cases heard in arbitration. Furthermore,company officials argued that the legal precedents under TitleVII were relevant and should be considered by the arbitrator inonly 12 percent of the cases, and union officials argued in favor ofrelevance in only 22 percent of all of the employment discrimina-tion cases heard in arbitration.

Another like problem arises because arbitrators only infre-quently rely on Title VII and other relevant legal precedentswhen deciding employment discrimination cases. The evidencefrom the survey reveals the following: The responding arbitrators


indicated that they had actually relied on Title VII legal preced-ents in only 12.5 percent of all of the employment discriminationcases heard in arbitration; and legal precedents were actuallycited in these arbitrators' decisions in only 11 percent of all ofthe employment discrimination cases heard in arbitration.

Although the survey data indicate that the responding arbitra-tors ruled in favor of employee-grievants in 34 percent of thecases involving claims of employment discrimination, the arbitra-tors in these cases usually avoided "legal" issues. In instances inwhich the grievants won, the arbitrator found that the companyor union was guilty of discrimination under the contract in only48 percent of the cases and guilty of discrimination under the lawin only 21 percent of the cases; no information was furnishedwith respect to the remaining 31 percent of the cases.

In Footnote 21 in the Gardner-Denver decision, the SupremeCourt stated that "where an arbitral determination gives full con-sideration to an employee's Title VII rights, a court may properlyaccord it great weight." Two of the measures of "full considera-tion" identified by the Court were "degree of procedural fair-ness" and "adequacy of the record with respect to the issue ofdiscrimination." Some of the data gleaned from the survey speakto these two considerations.

The evidence from the survey indicates that official transcriptswere made in only 43 percent (140) of all of the employmentdiscrimination cases heard in arbitration. Furthermore, the evi-dence reveals that prehearing and/or posthearing briefs were sub-mitted by both parties in only 52 percent (172) of all of the em-ployment discrimination cases heard in arbitration.

It is also noteworthy that most of the employmentdiscrimination cases decided in arbitration were resolved on themerits. This is clear from the facts that show that in only 11 cases(3.3 percent) did the company or the union argue that the claimof discrimination was not arbitrable under the collective bargain-ing agreement and in only 16 (4.8 percent) of the cases did theparties' collective bargaining agreement explicitly exclude dis-crimination claims from arbitration. However, only 25 percent ofthe responding arbitrators who heard and decided employmentdiscrimination cases last year indicated that they had advised griev-ants of their statutory rights pursuant to Title VII. While there


is no legal requirement that such advice be given by the arbitra-tor, it would be clear that many grievants who are not so ad-vised, and who are otherwise not represented by counsel, may notrealize that arbitration is not the forum of last resort for the reso-lution of employment discrimination cases.

Finally, and most significantly, it is somewhat amazing to notethat many of the responding arbitrators suggested that the qualityof the evidence given in employment discrimination cases heardin arbitration was deficient. On this point, the survey question-naire asked the arbitrators: "In how many of these [employmentdiscrimination] cases did you feel that the record was completeenough so that all of the legal issues under Title VII could havebeen resolved in a court of law?" In response to this question, theresponding arbitrators indicated that the record was complete inonly about 55 percent of all of the employment discriminationcases heard in arbitration. This fact alone would surely suggestthat the courts ought to be very careful before they begin to ac-cord great weight to arbitration opinions involving claims of em-ployment discrimination. This is especially so in light of the ev-idence here, which indicates that (1) no transcript of theproceedings is made in more than half of the arbitration casesinvolving claims of employment discrimination, and (2) most ofthe arbitrators who have heard and decided these cases have ad-mittedly declined to consider and resolve "legal" issues.

Arbitrators' Views Concerning the Role of the Arbitrator in De-ciding Employment Discrimination Cases

Whether or not arbitrators are professionally competent to de-cide legal issues in cases involving claims of employmentdiscrimination, it still must be realized that many arbitrators areloath to decide such issues. For many years, various members ofthe National Academy of Arbitrators have debated the questiondealing with the proper role of the arbitrator in handling "legal"issues in arbitration cases. Several theories have been advanced,most notably by Bernard Meltzer, Robert Howlett, Richard Mit-tenthal, Theodore St. Antoine, and Michael Sovern. All of thesetheories were ably summarized by Dean Sovern in a paper enti-tled "When Should Arbitrators Follow Federal Law?" that wasdelivered during the 1970 meeting of the National Academy of


Arbitrators.21 While these debates have been healthy academicexercises, they really have not told us much about what arbitra-tors are actually doing as a group (or what they feel that theyought to be doing) when presented with legal issues in connec-tion with claims of employment discrimination in arbitration.One of the reasons for the current survey was to get better andmore accurate empirical data on this subject. The results of thesurvey on this point are interesting but not surprising.

Nearly two thirds of the responding arbitrators stated that theybelieved that an arbitrator has no business interpreting or apply-ing a public statute in a contractual grievance dispute. (How-ever, nearly one half of the responding arbitrators did indicatethat an arbitrator should be free to comment on the relevant lawif it appears to conflict with the collective bargaining agreement.)Only one third of all of the responding arbitrators indicated thatthey believed a collective bargaining agreement must be read toinclude by reference all public law applicable thereto. In otherwords, most of the arbitrators rejected the view that an arbitratorshould always apply constitutional, statutory, or common lawprinciples to aid in the resolution of contractual grievance dis-putes.

Nearly all of the responding arbitrators who believed that anarbitrator has no business interpreting or applying a public stat-ute in a contractual grievance dispute conceded that there werecertain exceptions to this rule. Of these respondents, 85 percentagreed that an arbitrator may consider and interpret public lawin order to avoid compelling a union or a company to do some-thing that is clearly unlawful. Ninety-five percent of them agreedthat an arbitrator may properly refer to the applicable law if itcan be found that the parties have intentionally adopted a con-tract clause pursuant to an existing statute with the object of in-corporating the body of public law into the contract. Finally, 97percent of these respondents agreed that an arbitrator should con-sider public law when the parties have, by submission, conferredjurisdiction upon him or her to decide the contract issue in lightof the applicable federal or state law.

-'1 Michael I. Sovern, "When Should Arbitrators Follow Federal Law?" in Arbitra-tion and the Expanding Role of Neutrals, Proceedings of the 23rd Annual Meeting,National Academy of Arbitrators, eds. Gerald G. Somers and Barbara D. Dennis(Washington, BNA Books, 1970) , pp. 29-47.


Although most of the responding arbitrators appear to acceptthe view that an arbitrator generally has no business interpretingor applying a public statute in a contractual grievance dispute,except in limited and exceptional circumstances, the survey re-sults on this point are nevertheless anomalous in certain respects.More than one third of all of the respondents disagreed with theresult in the Gardner-Denver decision. This figure by itself is notsurprising. However, nearly 30 percent of all of the respondentswho stated that an arbitrator has no business interpreting orapplying public law in a contractual grievance dispute also statedthat they disagreed with the opinion in Gardner-Denver. This re-sult would appear to be inherently illogical.

Most of the respondents (90 percent) who disagreed with theresult in Gardner-Denver felt that they were professionally quali-fied to resolve legal issues in employment discrimination cases.This surely is not surprising, nor is it surprising that these per-sons would prefer some kind of deferral rule as opposed to theprinciples stated in the Gardner-Denver decision. However, it iscurious that nearly 20 percent of the responding arbitrators whostated that they were not professionally competent to handle legalissues in employment discrimination cases also stated that theydisagreed with the decision in Gardner-Denver. This position issurely inherently illogical.

Not only did a substantial majority of the responding arbitra-tors who disagreed with the decision in Gardner-Denver indicatethat they felt professionally competent to decide legal issues, but86 percent of this group also stated that they had read judicialopinions involving claims of employment discrimination and 60percent of the group stated that they regularly read labor advancesheets to keep abreast of current developments under Title VII.Taken together, these statistics not surprisingly suggest that thosepersons who are most familiar with the law under Title VII aremore inclined to disagree with the result in Gardner-Denver.

However, these findings do not negate the data that reveal thatonly 71 percent of the responding arbitrators felt that they wereprofessionally competent to decide legal issues in cases involvingclaims of employment discrimination; only 52 percent of the re-sponding arbitrators indicated that they regularly read labor ad-vance sheets to keep abreast of current developments under TitleVII; and only 14 percent of the responding arbitrators felt confi-


dent that they could accurately define "bona fide occupationalqualification," "reasonable accommodation/undue hardship," and"preferential treatment" and explain the relevant law underTitle VII with respect to each of these legal concepts.

Regional Differences

The evidence from the survey reveals some minor, but no sig-nificant, distinctions in the attitudes expressed among the arbitra-tors from different geographic regions in the United States. Forexample, more than 50 percent of the responding arbitratorsfrom every region in the country felt that they were profession-ally competent to decide legal issues in employment discrimina-tion cases: The figures ranged from 94 percent in Michigan, 91percent in the Midwest, 86 percent in the Southeast, 74 percentin the Southwest (including California and Hawaii), 67 percentin the Northeast, and 50 percent in the Northwest (includingonly Idaho, Washington, and Oregon).

Likewise, the proportional number of employment discrimina-tion cases heard in arbitration appeared to be evenly dividedthroughout the various regions in the country. Of the respond-ents from the northeast region, 54 percent indicated that theyhad heard employment discrimination cases in arbitration duringthe past year; 50 percent of the respondents from the Southeastand the Northwest had heard such cases; 44 percent of the re-spondents from the Midwest and the Southwest had heard dis-crimination cases; and 67 percent of the respondents from Michi-gan had decided employment discrimination cases.

It is interesting that nearly 53 percent of the respondents fromthe midwest region indicated that they did not agree with the Su-preme Court decision in Gardner-Denver. This percentage wasnearly 20 points higher than the next highest region. The figureis not surprising, however, when it is coupled with the fact that91 percent of all of the respondents in the Midwest felt that theywere professionally competent to decide issues in cases involvingclaims of employment discrimination.

Conclusion

There is nothing wrong with arbitrators' deciding cases involv-ing claims of race, sex, national origin, or religious discrimina-


tion. For, as the Supreme Court noted in Gardner-Denver,"where the collective-bargaining agreement contains a nondiscri-mination clause similar to Title VII, and where arbitral proce-dures are fair and regular, arbitration may well produce a settle-ment satisfactory to both employer and employee." But it shouldnot be assumed that merely because an arbitrator has heard a caseinvolving a claim of employment discrimination that he has alsoresolved the underlying "legal" issues that may be posed. Thedata recovered from the survey strongly militate against any suchconclusion.

The evidence as to whether and how many arbitrators are pro-fessionally competent to decide legal issues in cases involvingclaims of employment discrimination is at best mixed. Further-more, even assuming, arguendo, that most arbitrators are profes-sionally competent to decide such issues, the nature of the arbi-tration process often will not allow for full and adequateconsideration of an employee's Title VII rights. Finally, the evi-dence from the survey suggests that even when arbitrators areprofessionally competent to decide legal issues and when the arbi-tration process is adequate to allow for full consideration of legalquestions arising pursuant to Title VII, still many arbitrators be-lieve that they have no business interpreting or applying a publicstatute in a contractual grievance dispute.

Given all of these considerations, the courts should be verywary about reading Gardner-Denver too expansively in a mannerthat might well result in the development of de facto schemes ofdeferral that effectively foreclose full and complete judicial reso-lution of employment discrimination claims.

Some of the arbitrators who responded to the survey, and whoindicated that they were opposed to the decision in Gardner-Den-ver, argued that they were as competent as many judges to decidelegal issues arising pursuant to Title VII. Whether or not this istrue is really beside the point. One responding arbitrator put theproblem in proper perspective with the following comment:"Subjectively and privately I feel as well qualified as many of thejudges writing the decisions; but I would not publicly make thisclaim, nor would I be eager to assume that responsibility unlessthe parties explicitly so requested."

Another responding arbitrator commented that the Gardner-Denver decision


"permits the arbitrator to confine himself to interpreting the collec-tive bargaining agreement with less strain on his conscience, partic-ularly where the agreement and the law are not congruent, becausethe grievant now clearly has an alternative tribunal which is notconfined to the terms of the collective bargaining agreement. I thinkthis will tend to make many cases much less elaborate since there isno longer any question of meeting all the standards which would berelevant if deferral to arbitration by the courts or EEOC was apossibility."

Arbitrators, unlike judges, are accountable only to the partiesand their decisions are rarely subject to close judicial review. Thesimple fact is that arbitrators are not responsible for developingprinciples of public law. As the Court in Gardner-Denver noted,"the specialized competence of arbitrators pertains primarily tothe law of the shop, not the law of the land." Therefore, even ifsome arbitrators are better qualified than some judges to decidecertain legal issues, this still would not militate in favor of a de-ferral rule in cases involving claims of employment discrimina-tion.

The proper role of the arbitrator, as distinguished from arbi-tral competence, is the real reason why the Supreme Courtshould not dilute the Gardner-Denver decision in favor of any de-ferral rule. This point was best stated by Dean Shulman, in hisoft-quoted article, "Reason, Contract and Law in LaborRelations," "- as follows:

"A proper conception of the arbitrator's function is basic. He is nota public tribunal imposed upon the parties by superior authoritywhich the parties are obliged to accept. He has no general charterto administer justice for a community which transcends the parties.He is rather part of a system of industrial self-government createdby and confined to the parties. He serves their pleasure only, toadminister the rule of law established by their collective agreement."

A modern-day version of this same idea was stated by one ofthe arbitrators who responded to the survey and made the follow-ing comments:

"A national public policy on discrimination should and must bedeveloped, under statutes, by public administrative quasi-judicialagencies and courts; not by private persons like me, selected by pri-vate parties to decide particular disputes which they have. A con-sistent and uniform body of 'law,' binding on the nation should not

22 68 Harv. L. Rev. 999, 1016 (1955) .


be the creation of private decision-makers but of public instrumen-talities. Arbitration of labor-management disputes has been success-ful because of its restricted role. Freight it with the responsibilityof law enforcement and the interpretation of statutes and greatharm will be done to the institution as it presently exists.

"[The Gardner-Denver decision] hasn't changed my thinking at all.I was always confident that when the question reached the SupremeCourt, an arbitrator's decision on the application of a statute wouldnot (and should not) be binding and final as his decision on theprivate disputes of parties under their contract. Those whose bowelsare in an uproar over Gardner-Denver are acting in accordance withMaxim #244 of Publilius Syrus: 'The end justifies the means.' Occa-sionally this may be so; but there is no insufficient justification inthis case. The Court has decided wisely."

Appendix A

RESULTS FROM SURVEY QUESTIONNAIREDEALING WITH ARBITRATION OF EMPLOYMENT

DISCRIMINATION CASES SINCE THE ISSUANCEOF THE GARDNER-DENVER DECISION

1. Date when survey questionnaire was sentout: February 3, 1975

2. Deadline for survey replies: April 1, 19753. Sample group: All current United

States membersof the NationalAcademy of Ar-bitrators

4. Total number of surveys sent out: 4095. Total number of responses: 200 (49 percent)6. Responses by region:

No. of Responses Percentage ofNo. of Surveys from Region (% Returns from

Region Sent Out of Total Responses) the Region

Northeast 147 70 (35%) 47.6%Southeast 78 31 (15.5%) 39.7Northwest 7 4 (2%) 57(Idaho, Washington,

and Oregon)Midwest 68 37 (18.5%) 54.4Southwest 77 37 (18.5%) 48(including

California and Hawaii)Michigan 32 20 (10%) 62.5Unidentified — 1 (.5%)

"409" 200 (100%) 48.8%


7. Number of years of arbitration experienceamong respondents:

8. Average age of respondents:

9. Full-time vs. part-time status among re-spondents:

10. Professional training of respondents:

11. Number of respondents who have read judi-cial opinions involving claims of discrimina-tion under Title VII:

12. Number of respondents who regularly readlabor advance sheets to keep abreast of cur-rent developments under Title VII:

13. Number of respondents who believe thatthey can define "bona fide occupationalqualification," "reasonable accommodation/undue hardship," and "preferential treat-ment" (as legal principles arising underTitle VII) without doing any research:

14. Respondents' viewpoints concerning the rolehandling employment discrimination cases:a. An arbitrator has no business interpret-

ing or applying a public statute in a con-tract grievance dispute. If there is anirreconcilable conflict between Title VIIand the terms of an agreement, it is thearbitrator's duty to abide by the contractand ignore the law.

b. An arbitrator has no business interpret-ing or applying a public statute or lawin a contract grievance dispute. How-

Mean—21 yearsMedian—22 yearsRange—4-40 yearsMean—49 yearsMedian—51 yearsFull-time—61

(33%)Part-time—123

(66%)Lawyers—108

(54%)Economists—58

(29%)Political Scientists

- 1 4 (7%)Industrial Rela-

tions—54 (27%)Business—10 (5%)Other—11 (5.5%)Yes—154(77%)No—31 (16%)N A—15(7%)Yes—105 (52.5%)No—79 (39.5%)NA—16 (8%)Can accurately de-

fine terms andexplain the rele-vant law- 2 8 (14%)

Could make a good"educated guess"—60 (30%)

Would prefer to re-search the ques-tion—96 (48%)

NA-16 (8%)of the arbitrator in

28 (14%)


ever, an arbitrator should be free to com-ment on the relevant law, especially if itappears to conflict with the contract. 96 (48%)

c. A collective bargaining contract must beread to include by reference all publiclaw applicable thereto; hence, an arbi-trator should always apply constitutional,statutory, and common law to aid in theresolution of any grievance dispute. 53 (26.5%)

d. No choice. 4(2%)e. A different choice other than (a), (b),

or (c). 3(1.5%)15. Number of respondents who selected (a) or (b) above (and thus

agreed that an arbitrator has no business interpreting or applyinga public statute in a contract grievance dispute) who were willingto modify their positions by one of the following three exceptions:a. An arbitrator may consider and interpret

public law in order to avoid compelling Yes—105/124a company or union to do something (85%)that is clearly unlawful. No—10/124 (8%)

b. If it can be found that the parties haveintentionally adopted a contract clausepursuant to an existing statute, with theobject of incorporating the body of pub-lic law into the contract, then the arbi-trator may properly refer to the appli-cable statute and any regulations ordecisions thereunder in attempting toascertain the meaning of the contractclause in issue.

c. An arbitrator should consider public lawwhen the parties have, by submission,conferred jurisdiction upon him or her Yes—120/124to decide the contract issue in light ofapplicable federal or state law.

16. Number of respondents who heard employ-ment discrimination cases during the 12months between February 1, 1974, and Feb-ruary 1, 1975:

17. Total number of employment discrimina-tion cases heard by respondents:

18. Average number of employment discrimina-tion cases heard by all respondents:

19. Average number of employment discrimina-tion cases heard by respondents who decidedemployment discrimination cases:

Yes—118/124(95%)

No—1/124 (.8%)

(97%)No—2/124(1.5%)

Yes—93 (46.5%)No—107 (53.5%)

328

1.8

3.52


20. Number of cases involving race discrimina-tion: 231 (70%)

21. Number of cases involving sex discrimina-tion: 86 (26%)

22. Number of cases involving national origindiscrimination: 16 (4.8%)

23. Number of cases involving religious discrim-ination: 5 (1.5%)

24. Number of cases in which there were law-yers representing both the union and thecompany: 173 (52.7%)

25. Number of cases in which the company wasrepresented by legal counsel: 251 (76.5%)

26. Number of cases in which the union wasrepresented by legal counsel: 174 (53%)

27. Number of cases in which the grievant wasrepresented by legal counsel who was nototherwise associated with the union or thecompany: 30 (9%)

28. Number of cases in which the grievant hadfiled a charge of discrimination with theEEOC, or a state civil rights agency or incourt: 84 (25%)

29. Number of cases in which the issue of rele-vance of Title VII was raised: 103(31%)

30. Number of cases in which the companyargued that the legal precedents under TitleVII were relevant and should be consideredby the arbitrator: 42 (12%)

31. Number of cases in which the union arguedthat the legal precedents under Title VIIwere relevant and should be considered bythe arbitrator: 72 (22%)

32. Number of cases in which the companyargued that the legal precedents under TitleVII were irrelevant and should not be con-sidered by the arbitrator: 45 (13.7%)

33. Number of cases in which the union arguedthat the legal precedents under Title VIIwere irrelevant and should not be consid-ered by the arbitrator: 18 (5.4%)

34. Number of cases in which the arbitratoractually relied on Title VII precedent inreaching his or her opinion: 41 (12.5%)

35. Number of cases in which the arbitratoractually cited legal precedents under Title


VII in the body of his or her arbitrationdecision:

36. Number of cases where a transcript of theproceedings was made:

37. Number of cases in which the arbitrator feltthat the record was complete enough so thatall of the legal issues under Title VII couldhave been resolved in a court of law:

38. Number of cases in which the arbitratoractually ruled in favor of the grievant:

39. Number of cases in which the arbitratoractually found that the company and/or theunion was guilty of race, sex, religious, ornational origin discrimination which wasprohibited by the collective bargainingagreement:

40. Number of cases in which the arbitratorfound the company and/or the union wasguilty of race, sex, national origin, or reli-gious discrimination as prohibited by TitleVII:

41. Number of cases in which both parties sub-mitted prehearing and/or posthearing briefs:

42. Number of cases in which the company orthe union argued that the claim of discrimi-nation was not arbitrable under the collec-tive bargaining agreement:

43. Number of cases where the parties' contractexplicitly excluded discrimination claimsfrom arbitration:

44. Number of respondents who feel that theyare professionally competent to decide legalissues in cases involving claims of race, sex,national origin, or religious discrimination:

45. Number of respondents who agree with thejudicial opinion rendered in the Gardner-Denver decision:

46. Number of respondents who are now morereticent about deciding employment dis-crimination cases:

47. Number of arbitrators who are now lessreticent about deciding employment dis-crimination cases:

37(11%)

140 (42.6%)

179 (54.5%)

111(33.8%)

53/111(48%)

23/111(20.7%)

172(52.4%)

11(3.3%)

16 (4.8%)

Yes—143 (71.5%)No—32 (16%)NA—25 (12.5%)Yes—74 (37%)No—57 (28.5%)Qualified yes—22

( % )No opinion—47

(23.5%)Yes—23(11.5%)No—125 (62%)NA—52 (26%)Yes—5 (2.5%)No—127 (63.5%)NA—68 (34%)


48. Number of respondents who advised griev- Yes—30(15%)ants of their statutory rights before the issu- No—120 (60%)ance of the Gardner-Denver opinion: NA—50 (25%)

49. Number of respondents who would now Yes—48 (24%)(since the issuance of the Gardner-Denver No—100 (50%)opinion) advise grievants of their statutory NA—52 (26%)rights:

50. Number of respondents who find that theynow spend more time with "legal" issues in Yes—31 (15%)employment discrimination cases since the No—78 (39%)issuance of the Gardner-Denver opinion: NA—91 (45.5%)

51. Number of respondents who find that theyspend less time with "legal" issues in em- Yes—2 (1%)ployment discrimination cases since the issu- No—98 (49%)ance of the Gardner-Denver opinion: NA—100 (50%)

52. Number of respondents who have foundthat the parties tend to be better prepared Yes—25 (12.5%)in employment discrimination cases since No—62 (31%)the issuance of the Gardner-Denver opinion: NA—113 (56.5%)

Appendix B

SURVEY QUESTIONNAIREARBITRATION OF EMPLOYMENT DISCRIMINATION CASES

SINCE THE ISSUANCE OF GARDNER-DENVER

1. How long have you been arbitrating grievance disputes?2. What is your age?3. Do you arbitrate on a full-time or part-time basis? (check one)

Full-time Part-time4. If you arbitrate on a part-time basis, what work do you engage in

during the remainder of your time?5. What is your professional training?

Lawyer Industrial RelationsEconomist BusinessPolitical Scientist Other

6. Have you read any judicial opinions involving claims of discrimi-nation under Title VII?

Yes No7. Do you regularly read labor advance sheets (published by BNA

or CCH or the like) to keep abreast of current developmentsunder Title VII?

Yes No

"Bona fide occupational qualification," "reasonable accommoda-tion/undue hardship," and "preferential treatment" are three


concepts which are frequently discussed in connection with legalprinciples arising under Title VII. Could you, ivithout doing anyresearch, define each one of these terms and accurately explainthe current status of the law under Title VII with respect to eachof these concepts? (check one)a. I feel confident that I could accurately define each of

the terms and explain the relevant law.b. I could make a good "educated guess," but I would

not certify my answer as being accurate.c. I would prefer to research the question before answering.

9. If you had to make a choice, which one of the following view-points would you endorse? (check only one)a. An arbitrator has no business interpreting or applying

a public statute in a contract grievance dispute. Ifthere is an irreconcilable conflict between Title VIIand the terms of an agreement, it is the arbitrator'sduty to abide by the contract and ignore the law.

b. An arbitrator has no business interpreting or applyinga public statute or law in a contract grievance dispute.However, an arbitrator should be free to comment onthe relevant law, especially if it appears to conflictwith the contract.

c. A collective bargaining contract must be read to in-clude by reference all public law applicable thereto;hence, an arbitrator should always apply constitu-tional, statutory, and common law to aid in the resolu-tion of any grievance dispute.

10. If you marked choice (a) or (b) above, please indicate whetheryou accept any of the following modifications:

Yes Noa. An arbitrator may consider and interpret pub-

lic law in order to avoid compelling a companyor union to do something that is clearly un-lawful.

b. If it can be found that the parties have inten-tionally adopted a contract clause pursuant toan existing statute, with the object of incor-porating the body of public law into the con-tract, then the arbitrator may properly referto the applicable statute and any regulationsor decisions thereunder in attempting to ascer-tain the meaning of the contract clause in issue.

c. An arbitrator should consider public law whenthe parties have, by submission, conferred juris-diction upon him or her to decide the contractissue in light of applicable federal or state law. .

11. During the past twelve months (since Feb. 1, 1974), how manycases have you heard or decided involving claims of race, sex,national origin, or religious discrimination?


(The following questions (12-35) assume that you have heard somecases involving claims of race, sex, religious, or national origin dis-crimination during the preceding twelve months. In answering thesequestions, please rely solely on your experiences during the past twelvemonths. Please be sure to answer questions 36-38 even if you do notanswer questions 12-35.)12. How many of these cases have involved race discrimination?13. How many of these cases have involved sex discrimination?14. How many of these cases have involved national origin discrimi-

nation?15. How many of these cases have involved religious discrimina-

tion?16. In how many of these cases have there been lawyers representing

both the union and the company?17. In how many of these cases was the company represented by legal

counsel?18. In how many of these cases was the union represented by legal

counsel?19. In how many of these cases was the grievant represented by legal

counsel who was not otherwise associated with the union or thecompany?

20. In how many of these cases had the grievant already filed a chargeof discrimination with the EEOC, or a state civil rights agencyor in court?

21. In how many cases was the issue of the relevance of Title VIIraised?.

22. In how many cases did the company argue that the legal prece-dents under Title VII were relevant and should be consideredby the arbitrator?

23. In how many cases did the union argue that the legal precedentsunder Title VII were relevant and should be considered by thearbitrator?

24. In how many cases did the company argue that the legal prece-dents under Title VII were irrelevant and should not be consid-ered by the arbitrator?

25. In how many cases did the union argue that the legal precedentsunder Title VII were irrelevant and should not be considered bythe arbitrator?

26. In how many of these cases did you actually rely on Title VIIlegal precedent in reaching your opinion? .

27. In how many of these cases did you actually cite legal precedents(arising under Title VII) in the body of your arbitration deci-sion?

28. In how many of these cases was a transcript of the proceedingsmade? .

29. In how many of these cases did you feel that the record was


complete enough so that all of the legal issues under Title VIIcould have been resolved in a court of law?

30. In how many of these cases did you actually rule in favor of thegrievant?

31. In how many of these cases did you actually find that the companyand/or union was guilty of race, sex, religious, or national origindiscrimination which was proscribed by the contract?

32. In how many of these cases did you actually find that the companyand/or union was guilty of race, sex, national origin, or religiousdiscrimination as proscribed by Title VII?

33. In how many of these cases did both parties submit prehearingand/or posthearing briefs?

34. In how many of these cases did the company or the union arguethat the claim of discrimination was not arbitrable under thecontract? (Explain.)

35. Have you been involved in any cases during the past twelvemonths where the parties' contract explicitly excluded discrimina-tion claims from arbitration? If so, how many?

36. Do you feel professionally competent to decide legal issues incases involving claims of race, sex, national origin, or religiousdiscrimination? Yes No

37. Do you agree with the result in Gardner-Denver? If not, pleaseexplain your thinking.

38. Has the Gardner-Denver opinion caused you to change your think-ing about the arbitration of employment discrimination cases?If so, please explain by answering "yes" or "no" to the followingquestions:

Are you more reticent about deciding employmentdiscrimination cases?

Are you less reticent about deciding employmentdiscrimination cases?

Before Gardner-Denver, did you ever advise griev-ants of their statutory rights?

Since Gardner-Denver, do you (or would you) ad-vise grievants of their statutory rights?

Since Gardner-Denver, do you find that you spendmore time with "legal" issues in discriminationcases?

Since Gardner-Denver, do you find that you spendless time with "legal" issues in discriminationcases?

Have you found that the parties tend to be betterprepared in discrimination cases since Gardner-Denver?

Please explain any other ways that the decisionmay have changed your thinking about the arbi-tration of discrimination cases:

POST-GARDNER-DENVER DEVELOPMENTS 59

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